Balancing rights of complainer and accused

In June 2001 the Scottish Parliament published the Sexual Offences (Procedure and Evidence) (Scotland) Bill. The Bill may yet provide the Scottish Executive with one of its most testing periods as it endeavours to implement quite radical reforms to the current evidential and procedural provisions regarding sexual character evidence. The Bill is timely given the recent House of Lords decision in the English case of R v A1 regarding the compatibility of restrictions on sexual character evidence and the right to a fair trial contained in Article 6 of the European Convention on Human Rights. This article considers the sexual character provisions in the Sexual Offences (Procedure and Evidence) (Scotland) Bill, and in the light of R v A explores how that decision might inform debate in Scotland as the Bill progresses to the next stage.

Background to the Bill

In November 2000 the Government published a pre-legislative consultation document entitled Redressing the Balance: cross-examination in rape and sexual offence trials. The purpose of the document was to seek views on the perceived need for greater protection for victims of sexual offences, particularly rape. This need was fuelled by concerns that there was an emerging trend in Scotland, similar to that in England, of an accused dispensing with his legal representation and conducting the cross-examination of complainers in a manner that was particularly intimidating and humiliating.

The Bill proposes two main reforms –

Limitations on the right of an accused to conduct his own defence, and improvements to the current provisions regulating the use of sexual history or sexual character evidence. The first reform addresses an issue that is relatively uncommon in Scotland, but there are increasing reports of accused self-representing. As the Policy Memorandum accompanying the Bill points out, such cases invariably receive wide media attention, and this may create apprehension amongst victims of sexual offences, thereby acting as a further deterrent to reporting these crimes. The second issue, relating to the effectiveness of the statutory restrictions on sexual character evidence, has been a long-standing source of public complaint and is the focus of the remainder of this article.

Restrictions on Sexual Character Evidence

The use, or misuse, of sexual character evidence has been the subject of criticism since provisions restricting the admissibility of such evidence were first introduced in Scotland in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, and now contained in section 274 of the Criminal Procedure (Scotland) Act 1995. Critics argue, and the published research tends to confirm, that the policy aim behind these statutory provisions of protecting complainants from inappropriate character attacks, is not readily achieved and that despite the statutory restrictions, irrelevant sexual character evidence of limited probative value is admitted in many trials. One explanation offered for this has been the wide discretion given to judges by section 275 of the 1995 Act, which permits such evidence to be adduced if it would be contrary to the interests of justice to exclude it.

The most comprehensive research conducted into the operation of sections 274-275 identified three specific problems with the legislation: 2 

• Despite the existence of rules restricting sexual character evidence, the rules were not being followed, with breaches occurring on the part of both the defence and the prosecution.
• Despite the rules, subtle character attacks on complainers frequently occurred.
• Even if the rules were followed, the general policy aim of protecting complainers from cross-examination on irrelevant behaviour was not achieved.

Clause 8 of the Bill proposes new and strengthened sections 274 and 275, the latter  limiting the discretion of the trial judge through the introduction of more detailed guidance regarding the circumstances of when sexual character evidence may be adduced. Moreover, the Bill provides that advance written notice must be given of any applications to adduce sexual character evidence. The new section 275 provides that sexual character evidence may be admitted only if the court is satisfied that:

• the evidence or questioning will relate only to a specific occurrence or occurrences of sexual or other behaviour or to specific facts demonstrating – the complainer’s character; or any condition or predisposition to which the complainer is or has been subject;
• that occurrence or those occurrences of behaviour or facts are relevant...; and
• the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited.

The formulation of this clause is a valiant effort to achieve greater protection for complainants. However, despite the intentions of the drafters of the Bill, it is perhaps optimistic to presume that tightening the rules through more explicit guidelines will necessarily lead to the desired policy outcome or to the abolition of subtle character attacks. This is especially so given that the proposal is unlikely to meet with universal acclaim if the published responses to the pre-legislative document Redressing the Balance which mooted curtailing judicial discretion are a reliable indicator. In the main, responses from organisations representing the legal profession and the judiciary thought the present system largely satisfactory and saw no need for reform, though this was in stark contrast to the views of other groups.

More importantly, if this Bill is enacted, will the new section 275 give rise to claims of incompatibility with article 6 of the type that arose in R v A?

The decision in R v A

The defendant in R v A was charged with the rape of the girlfriend of his flatmate on 14 June 2000. The defendant and the complainant had first met three weeks previously. The rape was alleged to have occurred while the defendant and the complainant were

returning from visiting the flatmate in hospital where he had been taken earlier that day after the three of them had been for a picnic. The defendant claimed that the sexual intercourse was consensual, or alternatively that he believed it was consensual. He also claimed that he and the complainant had been having a sexual relationship for around three weeks prior to the alleged rape.

At a preparatory hearing the defendant’s counsel sought leave to cross-examine the complainant on the issue of the alleged previous sexual relationship with A. The relevant English provisions regulating sexual character evidence are now contained in the Youth Justice and Criminal Evidence Act 1999, section 41(1) of which provides that except with the leave of the court:

• no evidence may be adduced, and
• no question may be asked in cross-examination, …about any sexual behaviour of the complainant.

The court may give leave to elicit evidence if the conditions set out in sections 41(3) or 41(5) are met, which broadly relate to the complainant’s behaviour at or about the same time as the alleged rape occurred, or behaviour so similar to the complainant’s behaviour at the time of the alleged offence that it cannot be a coincidence.

The judge ruled, inter alia, that (1) the act of consensual sexual intercourse with the flatmate could be put to the complainant in cross-examination; and (2) that the complainant could not be cross-examined, nor could evidence be led, about the alleged sexual relationship with the defendant. The judge noted that his ruling would result in a prima facie breach of the right to a fair trial under article 6 of the ECHR and gave leave to appeal. The Court of Appeal allowed the appeal and granted the Crown leave to appeal to the House of Lords.

The speeches from each of the law lords set the context for the statutory restrictions and explain carefully the delicate balance between the twin objectives of protecting complainants from intrusion and harassment in the witness box, and ensuring a fair trial for the accused. Describing this balance as having been “in need of adjustment” in favour of complainants, Lord Hope noted that section 41 was “designed to achieve that balance”. Lord Steyn summarised the issue as “whether, measured against the guarantee of a fair trial, the breadth of the exclusionary provisions of section 41 in respect of sexual experience between a complainant and the defendant are justified and proportionate”.

The House of Lords has already addressed interpretation of evidential issues and conflicting Convention rights in various cases, notably R v DPP ex p Kebilene3 (burden of proof) and Brown v Stottiv4 (self-incrimination). In each case it is a balancing act or, as Lord Hope put it, “whether Parliament acted within its discretionary area of judgment when it was choosing the point of balance”. Their Lordships in R v A ultimately dismissed the appeal, ruling that the legislation was not incompatible with article 6, provided section 41(3) was interpreted broadly.  The test of admissibility in England is therefore that sexual character evidence must be admitted if it is “so relevant to the issue of consent that to exclude it would endanger the fairness of the trial”5

The Scottish dimension

Do the provisions restricting sexual character evidence in the Sexual Offences (Procedure and Evidence) (Scotland) Bill create similar potential for Convention breaches? The facts in R v A are not peculiar to England. They are typical of many rape allegations where the parties are acquaintances. There is similarity of legislative intent in regulating sexual character evidence in both the Westminster statute and the Scottish Bill. Therefore we could expect that a Scottish ruling based on the R v A facts would bear a close correspondence to the Lords’ ruling. However, the Scottish provisions have been carefully drafted to try to guard against a Convention breach of the type that arose in R v A. The Scottish drafters had the benefit of the reasoning in that case and have included an important distinguishing feature between the two sets of statutory provisions regulating the admissibility of sexual character evidence.

Unlike the English provisions, the proposed new section 275 does not impose such strict pre-determined constraints on adducing evidence of sexual character, preferring a more evaluative approach. Thus, section 275(1)(c) sets up an explicit balancing exercise for the admissibility of evidence. Applications for admissibility of evidence will succeed if “the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited” (emphasis added). The proper administration of justice includes “appropriate protection of a complainer’s dignity and privacy,” a pioneering provision that acknowledges the rights of witnesses implicit in articles 3 and 8 of the Convention. This balancing exercise preserves judicial discretion while making the conditions for its exercise more explicit.

Conclusion

In the field of human rights lessons must be learnt across jurisdictions. All Anglo-American jurisdictions have enacted some form of rape shield provisions and all have encountered similar difficulties in the effective implementation of these provisions. The major obstacles to reform appear to stem from a continuing attachment to stereotyping of both victims and assailants. This stereotyping has sometimes formed the platform for character attacks based solely on the notion that a complainer’s previous sexual behaviour was suggestive of consent to sexual intercourse with the accused, and /or rendered her less credible and reliable as a witness. As was observed in the Canadian Supreme court case of R v Seaboyer,6 cited with approval by Lord Hope in R v A, these myths “may still inform the thinking of many but have no place in a rational and just system of law”. The proposed Scottish provisions in this area aim to contribute to a rational and just system of Scots law with a robust approach designed to protect the rights of both accused and complainants.

Fiona E. Raitt, Department of Law, University of Dundee